License

License

Updated - 10/30/2015

CHICAGO METRICS, LLCEND-USER LICENSE AGREEMENT

Please read this agreement carefully. This End-User License Agreement (“Agreement”) constitutes a binding legal agreement between you (“Licensee”) and Chicago Metrics, LLC (“Licensor”) and establishes the terms and conditions by which you are permitted to install and use the Licensed Program (as defined below) and any related items of Licensor (as defined below). By downloading, installing and/or using the Licensed Program, you confirm that you have read, understand and agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of your employer, your client, or any other person or entity (and you have the legal authority to sign contracts on their behalf), then “you” refers to that entity. If not, then this agreement binds you personally. This Agreement does not create third-party beneficiary rights for any parties. If you do not agree to the terms of this Agreement, do not install the Licensed Program.

DEFINITIONS

The parties agree that, for the purposes of this Agreement, the following terms shall have the meanings described below:

“Chicago Metrics Program” means the Program and related data offered by Chicago Metrics to help subscribers measure and assess their data-security readiness and/or preparedness.

“Computer” means any device (and in the case of devices which allow simultaneous use by multiple individuals, each individual user account on any such device) capable of using the Licensed Program, regardless of where the Licensed Program is installed.

“Derivative Work” means any creation, data, or information that is based on or derived from the Licensed Program for commercial use, or for distribution to or use of any person or entity other than the Licensee Parties.

“Licensed Program” means the Chicago Metrics Program and related data licensed pursuant to this Agreement.

“Licensor Parties” means Licensor, its agents, employees, officers, directors, shareholders, advisors, successors, and assigns, and any of their affiliates.

“Licensor Properties” means, collectively, the Licensed Program, the Trademarks, and all of Licensor’s fonts, designs, Program, trademarks, copyrights, or other intellectual property, and all other related items of Licensor intellectual property made available to you pursuant to or in connection with this Agreement.

“Order Summary” means the file created when Licensee enters into this Agreement, which includes the specific Licensed Program covered by the Agreement, Licensee’s payment information, the number of Permitted Computers, the applicable fees, and any other relevant information.

“Permitted Computer(s)” means the number of Computer(s) specified on the Order Summary.

“Security Features” means any security mechanisms available for the purpose of preventing any unauthorized Person or Computer from accessing the Licensed Program, including those features implemented after the execution of this Agreement as they become available to prevent use of the Licensed Program by any unauthorized Person or Computer.

“Term” means the period beginning on the Effective Date and concluding on the Termination Date set forth in the Order Summary, unless Licensor terminates this Agreement at an earlier time pursuant to Section IX herein.

“Trademarks” means the names of Licensor and the Licensed Program.

II. GRANT OF LICENSE Subject to the terms of this Agreement, Licensor grants to Licensee a limited, non-exclusive, non-transferable, revocable license, to do the following during the Term:

Installation. Install the Licensed Program on one or more Permitted Computers, as specified on your applicable Order Summary, to use in accordance with this Agreement.

Permissible Uses. Licensee may create, modify, copy, manipulate, print, or otherwise process data in connection with the Licensed Program for the use of the Licensee. Licensee may not engage in any of the above actions for commercial purposes without obtaining an additional license for such purposes from Licensor.

Rights Reserved. This Agreement does not grant to Licensee any right, title or interest in or to the Licensed Program, other than the grant of rights expressly provided in this Agreement. All rights not granted by this license are expressly reserved.

Restrictions. Licensee may not, and must ensure that no Person is able to:

create any Derivative Work of any Licensed Program or any program that is substantially similar to the Licensed Program;

install or use the Licensed Program on any Computer, except as specified by this Agreement and your Order Summary, in any manner that allows any Person or Computer to access the Licensed Program other than as expressly provided for in this Agreement; or

Continue to use any Licensed Program or Licensor Properties after termination of this Agreement.

(e) Licensee shall be fully responsible for all use of the Licensed Program by any Person who gains access to it pursuant to the terms and conditions of this Agreement, or as the result of any act or omission of Licensee in violation of this Agreement. Also, Licensee will use its best efforts to adopt new Security Features as they become generally available from time to time.

PAYMENT AND TAXES.

(a) In consideration for the rights granted to Licensee hereunder, Licensee shall pay to Licensor a license fee specified on the Order Summary, payable on the date the Licensee enters into this Agreement by clicking below.(b) A valid credit card number is required in order to enter into this Agreement. You hereby represent and warrant that you are authorized to use the credit card provided to us in association with this Agreement. If Licensor cannot process your credit card for any reason, access to Licensed Program may be delayed until payment can be processed.(c) All amounts paid pursuant to this Agreement are non-returnable and nonrefundable. (d) All fees will not include, and Licensee is responsible for paying, any applicable sales, use, gross receipts, excise, import, export, value added or similar taxes. Each party will bear its own taxes as levied under applicable law.

INTELLECTUAL PROPERTY.

(a) Licensee acknowledges that Licensor is the exclusive owner of all worldwide right, title and interest in and to the Licensor Properties, including all copies of the Licensed Program, regardless of the format in which they are expressed or the media on which they are recorded. \(b) Licensee agrees not to challenge Licensor’s rights in or to the Licensor Properties, or the validity of any intellectual property or other right of Licensor therein, or to infringe Licensor’s rights therein. All goodwill that may become attached to the Trademarks as a result of Licensee’s use of the Licensed Program shall inure to the exclusive benefit of Licensor. Licensee shall refrain from using the Trademarks as part of any corporate, trade or firm name or style of Licensee. Licensee shall not create a combination mark consisting of any of the Trademarks with the proprietary marks of any other Person. Licensee shall not take any action that could reasonably be expected to impair the registrability, validity or enforceability of any of the Trademarks, nor shall Licensee attempt to register, use or aid any third party in attempting to register or use, in any jurisdiction, any trademark or service mark which may, in the reasonable opinion of Licensor, infringe or otherwise violate Licensor’s rights to the Trademarks.

UPDATES AND UPGRADES. Licensor will periodically provide updates and upgrades to the Licensed Program, and such updates and upgrades will be considered as part of the license rights, and subject to the Licensee’s duties, set forth herein.

TRANSFER OF RIGHTS PROHIBITED.

(a) Licensee may not sell, lease, sublicense, or otherwise assign or transfer (each, a “Transfer”) any rights, duties or obligations under this Agreement, in whole or in part, to any Person, including by merger or operation of law.(b) If Licensee is a corporate parent, subdivision, wholly-owned subsidiary, joint venture, unincorporated division, or is otherwise affiliated with another Person, Licensee may not permit such Person, or any Person owned, operated, or otherwise affiliated with such Person, to use the Licensed Program in any manner, except as otherwise permitted in writing by Licensor.(c) Any Transfer in violation of this Agreement will be null and void.

NO WARRANTY.

THE LICENSED PROGRAM IS PROVIDED “AS IS.” TO THE EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR OTHERWISE WITH RESPECT TO THE LICENSED PROGRAM. IN ADDITION, THERE IS NO WARRANTY OF NON-INFRINGEMENT, TITLE OR QUIET ENJOYMENT.

SUBJECT TO AND WITHOUT WAIVING OR LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY, REPRESENTATION, PROMISE, GUARANTEE, ASSURANCE, OR ANY OTHER STATEMENT WHATSOEVER, WHETHER EXPRESS OR IMPLIED, REGARDING THE EXTENT TO WHICH THE LICENSED PROGRAM MAY OR MAY NOT PREVENT OR REDUCE THE RISKS OF A DATA BREACH, INCIDENT, OR OTHER EXPOSURE OR DISCLOSURE OF DATA OR OTHER INFORMATION. ALL SUCH RISKS ARE THE RESPONSIBILITY OF LICENSEE ONLY AND LICENSEE PARTIES ONLY. LICENSEE ALSO UNDERSTANDS AND AGREES THAT LICENSEE DOWNLOADS AND/OR USES THE LICENSED PROGRAM AT LICENSEE’S DISCRETION AND RISK AND THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ANY COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE LICENSED PROGRAM.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE. LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

DISCLAIMER OF LIABILITY, LIMITATION OF DAMAGES, AND INDEMNIFICATION.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL LIABILITY FOR ANY LOSS, COST OR DAMAGE, INCLUDING WITHOUT LIMITATION INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, WORK STOPPAGE, LOSS OF DATA, OR COMPUTER FAILURE, DAMAGE OR MALFUNCTION, OR FOR ANY CLAIM BY ANY PARTY, EVEN IF LICENSOR HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE THEORY (INCLUDING CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT PAID BY LICENSEE UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. LICENSOR AND LICENSEE ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT THE PRICE FOR THE LICENSED PROGRAM IS DETERMINED IN PART BY TAKING INTO ACCOUNT THE EXISTENCE OF THESE LIMITATIONS.

Licensee, at its expense, shall indemnify and hold harmless licensor from any and all claims, causes of action, damages, liabilities, penalties, fines, losses, damages, claims, expenses (including attorneys’ fees and court costs) and/or any other monetary exposure in any manner arising from, relating to, or in connection with: (1) any data breach, incident, or other exposure or disclosure or other information; (2) any use of the Licensed Program by Licensee (unless and only to the extent the loss is attributable to a breach by Licensor of any obligation under this Agreement); (3) any breach by Licensee of this Agreement, or (4) any actions by Licensee Parties or Persons that would constitute a breach of this Agreement if that Licensee Party were a party to this Agreement and its obligations were substantially the same as Licensee’s obligations.

BREACH AND TERMINATION.

Licensor may terminate this Agreement immediately by written notice to Licensee upon failure by Licensee to comply with the terms of this Agreement, including without limitation, by use exceeding the scope of the licenses granted in Paragraph 2 of this Agreement.

Licensor may terminate this Agreement or suspend Licensee’s rights to use the Licensed Program upon written notice to Licensee if:

Licensee has materially breached any obligation under this Agreement and failed to cure the breach to Licensor’s reasonable satisfaction within fifteen (15) days following receipt of notice of the breach;

a Person other than Licensee has used the Licensed Program employing Licensee’s access rights or Licensee’s copy of any Program;

Licensee stops or suspends doing business;

Licensee becomes insolvent or becomes subject to any bankruptcy or insolvency proceeding under federal or state law (unless the proceeding is removed or dismissed within sixty (60) days from the filing date) or becomes subject to direct control of a transferee, receiver, or similar authority or makes an assignment for the benefit of creditors; or

as a result of an acquisition, merger, reorganization or strategic business relationship, Licensee becomes a competitor of Licensor or, in Licensor’s reasonable opinion, is likely to become such a competitor of Licensor within one hundred eighty (180) days.

The termination of this Agreement shall automatically terminate and extinguish the licenses granted herein. Upon any such termination, Licensee shall immediately destroy the original and all copies of the Licensed Program in its possession and Licensee shall have no further right to use the Licensed Program pursuant to this Agreement. All confidentiality obligations of Licensee under this Agreement will continue for two (2) years after any expiration or termination of this Agreement.

Licensee hereby waives any and all challenges to, or claims or defenses regarding Licensor’s right to terminate this Agreement pursuant to the terms hereof.

In lieu of termination, Licensor reserves the right to (a) require that Licensee immediately cease any unauthorized use in violation of the terms of this Agreement and (b) assess additional fees for the unauthorized use.

Licensor’s rights and remedies under this Agreement shall be cumulative and not exclusive of any other rights or remedies provided hereunder or by law.

FORCE MAJEURE. Licensor shall not be liable for damages and Licensee shall not have the right to terminate this Agreement for any delay or default in delivery of the Licensed Program resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control including, but not limited to: internet failures, network failures, computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, acts of God, terrorist action, acts of civil or military authority, government actions, fires, epidemics, riots, wars, sabotage, insurrections, labor shortages or disputes.

GOVERNING LAW; JURISDICTION AND VENUE. This Agreement and all rights and obligations under this Agreement shall in all respects be governed by, and construed and enforced in accordance with, the laws of the State of Illinois (the “State”), but without regard to its conflicts of laws or choice of forum rules. Licensee hereby irrevocably submits to personal jurisdiction in the State and to the non-exclusive jurisdiction of any Illinois state or federal court sitting in the County of Cook over any legal suit, action, or proceeding arising out of or relating to this Agreement or the relationships created by or under this Agreement (“Action”). Licensee hereby waives and agrees not to assert, as a defense to any Action or a motion to transfer venue of any Action, any claim (a) that it is not subject to such jurisdiction; (b) that any Action may not be brought against it or is not maintainable in those courts; (c) that this Agreement may not be enforced in or by those courts; (d) that it is exempt or immune from execution; (e) that the Action is brought in an inconvenient forum; or (f) that the venue for the Action is in any way improper.

NO WAIVER. No failure by either party to object to any breach of any provision of this Agreement shall constitute a waiver of such provision, a waiver of any other breach, or a waiver of any other provision of this Agreement.

SEVERABILITY. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of any other provision hereof. To the fullest extent permitted by law, if any provision of this Agreement, or the application thereof to any Person or circumstance, is invalid or unenforceable (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability.

RELATIONSHIP OF THE PARTIES. Each of the parties shall act as an independent contractor under this Agreement and neither is now, nor in the future, an agent or legal representative of the other for any purpose. This Agreement shall not be construed to place the parties in the relationship of partners or joint venturers. Neither party has any right or authority to bind the other in any way.

ENTIRE AGREEMENT AND AMENDMENTS. This Agreement, along with its Order Summary, constitutes the entire understanding between the parties concerning the Licensed Program and supersedes all previous agreements, promises, representations and negotiations between the parties concerning the same. The parties agree that Licensor may amend this Agreement by making revisions to the copy of the Agreement posted on Chicago Metrics website, in which case the amendments are deemed to be agreed and final seven (7) days after notice of the posting of a revised version are provided to Licensee by email, unless Licensee objects to such revisions within the seven-day timeframe.

SURVIVABILITY. Sections 3 through 9 and 11 through 21 of this Agreement, and any terms that by their nature survive termination, shall survive the termination of this Agreement.

NOTICE.

Any notice, approval, request, authorization, direction or other communication under this Agreement shall be sufficient if sent by certified U.S. mail, addressed to the party to whom the same is directed, in which event the date of the notice shall be the date of deposit in the U.S. mails, postage prepaid, or on the delivery date if delivered by email; provided, however, that notice sent by email shall not be effective with respect to matters related to termination or indemnity.

Notice shall be provided to Licensee at the address set forth on Licensee’s Order Summary.

EQUITABLE RELIEF. You hereby agree that any breach of this Agreement, including any violation of Section 2 herein, would cause irreparable harm to Licensor, and that in the event of any breach or threatened breach, Licensor will be entitled to obtain equitable relief in addition to any other remedy. Licensor’s rights and remedies under this Agreement shall be cumulative and not exclusive of any other rights or remedies provided hereunder or by law.

CAPTIONS; CONSTRUCTION. The paragraph headings in this Agreement are for reference purposes only and should not in any way affect the meaning or interpretations of this Agreement. The word “including” is intended to be illustrative and includes the meaning, “including, but not limited to.” The singular of a defined term includes the plural and vice versa.